Is taxpayer data recognised as highly confidential and adequately safeguarded against disclosure to third parties, including other parts of the Government?

Tax

Cyprus

While complying fully with all information exchange standards, Cyprus takes taxpayer confidentiality very seriously. The Assessment and Collection of Taxes Law contains strong safeguards against inappropriate disclosure of taxpayer information and requires requests for disclosure to conform with strict requirements, thus ruling out so-called fishing expeditions.

Greece

Confidentiality of taxpayer data is protected by the provisions of article 17 of the Tax Procedure Code. Generally, confidentiality of tax matters is adequately protected. There are statutory exceptions where the confidentiality is waived, for example in favour of governmental agencies, the judiciary, the Anti-Money Laundering Authority etc.

Turkey

In Turkey, there is of course rule of taxpayer confidentiality and accordingly tax authorities are not allowed to disclose information of taxpayers to third parties. However, in certain cases such as in transfer pricing cases where the tax inspectors have precedents to support their reports, the tax courts have right to request the name and market details of the precedents to find out whether the precedent study is conducted duly.

United Kingdom

Section 18 of the Commissioners for Revenue and Customs Act 2005 (CRCA) imposes a duty on HMRC officials to ensure that taxpayer information is kept confidential. It is a criminal offence to contravene section 18 by disclosing information to a person whose identity is specified in the disclosure or can be deduced from it. The s18 duty is not absolute and it does not apply to a disclosure which “is made for the purposes of a function of the Revenue and Customs and does not contravene any restriction imposed by the commissioners”

A case of particular interest on this exception is R (Ingenious Media Holdings plc) and anor v The Commissioners for HMRC [2013] EWHC 3258 (Admin). Mr David Hartnett, the Permanent Secretary for Tax at HMRC, expressed views “off the record” to two journalists from The Times newspaper concerning films schemes and the involvement of Mr Patrick McKenna in the schemes. The Times published an article including statements from a ‘senior revenue official’ such as “we would like to recover lots of tax relief he’s generated for himself and for other people”. Ingenious and Mr McKenna brought proceedings inter alia for damages for breach of HMRC’s statutory obligations of confidentiality. The High Court held that these disclosures were made for the purposes of a function of HMRC, meaning that they fell within the scope of the exception to the s18 duty. The decision has been appealed all the way to the Supreme Court and the decision is expected later this year.

Mexico

In terms of the Federal Tax Code, information provided by taxpayers to the competent authorities is considered as confidential and it is duly protected from disclosure to third parties. In this sense, such information could only be provided to other governmental authorities in cases sanctioned by law and assuming that due process has been abided by.

Nonetheless, it should be noted that certain information could be required from tax authorities on an international scale, in pursuance of broad exchange of information agreements or other relevant instruments such as FATCA or CRS.

Gibraltar

Yes, appropriate organisational and technical security measures are taken to protect personal data against accidental or unlawful destruction or loss, alteration, unauthorised disclosure or access.

Japan

Generally yes. The officials of the tax authority are bound by and subject to the confidentiality obligations under law, and unlawful disclosure will constitute a criminal offence. Taxpayers’ information is not generally shared with other parts of the government. However, it is at the same time true, as a matter of fact, that there often are press coverages over an assessment made upon a specifically identified taxpayer (which is clearly confidential information), even if the taxpayer itself does not make it public, if the information has a news value. Many practitioners suspect that some officials of the tax authority having contact with the press are the news source, while the tax authority never admits it.

Hong Kong

Yes, there are strict safeguards in the tax legislation against disclosure of any tax information to anyone. However, in recent years, the government has expanded the ability of the IRD to obtain and reveal tax information to other jurisdictions. Hong Kong is now a party to 35 Comprehensive Double Taxation Agreements/Arrangement with another 14 at different stages of negotiations as well as 7 Tax Information Exchange Agreements (TIEAs) with another 3 in progress under which it has committed to provide various tax information to other jurisdictions. Furthermore, Hong Kong has recently adopted the legislative framework authorising it to enter into automatic exchange of tax information. It has already announced that Japan and the UK would be its first partners for automatic exchange of information and it will gradually continue to build its network.

United States

The tax code provides for strict confidentiality and non-disclosure rules for taxpayer information. Criminal penalties may be imposed on people who disclose tax information. Other agencies of the Government can only receive taxpayer information in limited situations and with a court order.

The U.S. has entered into numerous tax treaties and Tax Information Exchange Agreements under which the U.S. will exchange tax information on a government to government basis in certain situations.

Spain

Article 95 of the Spanish General Tax Act (Act 58/2003, of 17 December) imposes a duty on the officials of the Spanish Tax Authorities to ensure that taxpayer information is kept confidential. It is a criminal offence to breach this obligation by disclosing information.

Notwithstanding the foregoing, this duty is not absolute and it does not apply to disclosures for the purposes of a procedure carried out by the Spanish Tax Authorities or the Spanish courts.

Additionally, a recent exception to this duty was included in the Spanish General Tax Act whereby the Spanish Tax Authorities are entitled to publish, on a regular basis, lists of taxpayers whose unpaid tax quotas and/or unpaid tax penalties amount to at least EUR 1 million.

Austria

Yes, tax payer data are subject to the highest level of confidentiality and may only be disclosed to other parts of the governments in case of a Judge's order (e.g. if required as evidence in a criminal procedure).

Germany

Generally yes. Pursuant to Sec. 30 of the German Tax Code (Abgabenordnung), German tax authorities have to observe the tax secrecy principle. This means that in general they are not allowed to disclose to other persons facts or circumstances that become known to them in a tax procedure. There are certain exceptions from the tax secrecy principle, for example if disclosing facts and circumstances serves to pursue criminal proceedings unrelated to tax.

It should be noted, however, that Germany has concluded a multitude of bilateral double tax treaties and agreements on the exchange of information with other countries under which the authorities shall assist each other through exchange of information that is relevant to the administration and enforcement of the respective tax laws. The information that can be exchanged under such treaties and agreements for example includes information that is relevant to the determination, assessment and collection of taxes, the recovery and enforcement of tax claims, or the investigation or prosecution of tax matters.

Due to OECD BEPS recommendations, the rights of the authorities to exchange taxpayer data will be further broadened, e.g. with respect to the exchange of tax rulings or country-by-country reporting.

Belgium

Yes. Under the Income Tax Code (‘ITC’), the Belgian tax authorities must observe the ‘tax secrecy’ principle. Civil servants are not allowed to disclose to anyone else the facts or circumstances that have become available to them in the exercise of their work activities. Violation of this ‘tax secrecy’ principle is a criminal offence. However, there are certain exceptions to this principle, for example if disclosing facts and circumstances assists in the pursuit of criminal proceedings unrelated to tax matters.

Belgium has concluded a multitude of bilateral double tax treaties and agreements on the exchange of information with other countries under which the authorities of various jurisdictions assist each other through the exchange of information that is relevant to the administration and the enforcement of the respective tax laws. The information that can be exchanged under such treaties and agreements includes information that is relevant to the determination, assessment and collection of taxes, the recovery and enforcement of tax claims, or the investigation or prosecution of tax matters.

Following OECD anti-Base Erosion and Profit Shifting (‘BEPS’) recommendations, the rights of the authorities to exchange taxpayer data will be further broadened, e.g. the exchange of tax rulings or country-by-country reporting.

Italy

Pursuant to article 68 of Presidential Decree no. 600/1973 officers of the Italian Tax Authorities must ensure that any information concerning the tax assessment of a taxpayer is kept confidential. It is a criminal offence to breach this obligation by disclosing information (art. 326 of the Criminal Code).

However, officers of the Italian Tax Authorities are by the same article 68 authorized to disclose the abovementioned information to certain other public officers involved or interested in the same tax assessment, as well as upon Court order.

The above mentioned confidentiality duty does not apply to the information included in the tax returns filed by the taxpayer.

Malaysia

The tax laws recognise that information with regard to taxpayer’s data are highly confidential and there are adequate safeguards both in law and in practice to prevent any form of unauthorised disclosure.

Ireland

Yes, taxpayer confidentiality is enshrined in Irish tax law and taxpayer information can only be disclosed in limited circumstances such as criminal proceedings or legal proceedings relating to tax administration. The Irish Revenue Commissioners is also required to disclose certain information as required under tax treaties and mutual assistance provisions of EU law.

France

The FTA are required to keep confidential any kind of information they may be granted access to in the course of an audit, and do so in practice.

Australia

Provisions in the taxation and privacy laws operate to recognise taxpayer data as highly confidential. These laws impose criminal sanctions on ATO officers that misuse or release that information without authority.

However, the taxation laws do have some specific exceptions that allow the sharing of taxpayer information in certain circumstances. These circumstances are ordinarily concerned with ascertaining the entitlement of some entity to other government benefits (eg taxpayer data can be shared with the chief executive of the Government health scheme operator, Medicare or for the purposes of administering premium reduction scheme).

Switzerland

The Swiss tax legislation provides for strict confidentiality and non-disclosure rules for taxpayer information. With regards to exchange of information, other Swiss authorities can receive taxpayer information in certain situations.

Switzerland has entered into numerous tax treaties and Tax Information Exchange Agreements under which Switzerland will exchange tax information on a government to government basis in certain situations.